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Showing 241 to 260 of 1076 Records
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2014 (10) TMI 843
Mis-declaration of value of diamond – Vide impugned order consignment of 299.33 carats of cut and polished diamonds imported by appellant was confiscated and allowed to be re-exported on payment of redemption fine under Section 125 of Customs Act, 1962 – Appellants have appealed against confiscation and consequent redemption fine, on other hand Revenue appealed for imposition of penalty which was not imposed by adjudicating authority – Held that:- packets containing 299.33 carats were stated to have been exported consignment but actually consignment of 1098.80 carats was exported – Therefore, claim of appellant that this consignment was re-imported without accompanying documents due to oversight is not plausible claim because only part of exported goods were brought back – In view of these facts there is no doubt that there has been mis-declaration – Diamonds being very sensitive commodity its trading of may not have duty implication but can have other implications of money transactions – No reason to disagree with findings of Commissioner confiscating goods and imposition of redemption fine – Decided against Assesse.
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2014 (10) TMI 842
Mid-declaration of value – Determination of assessable value – Commissioner arrived at finding of mis-declaration of goods and consequently, mis-declaration of value and enhanced declared price of steel wheels, by referring to contemporaneous bills of entries – In addition, commissioner confiscated goods with redemption fine and has imposed penalty upon appellant – Appellant alleged that there were other contemporaneous evidences at lower value still Commissioner adopted higher value – Held that:- Commissioner has adopted value based upon bill of entry where quantity imported was 720 pieces – Though quantity in said bill of entry is against 720 pieces and the appellant’s import of higher number of pieces i.e. 2880 which may further effect assessable value, but appellant is not pressing on this ground and prays for adopting lower value of ₹ 1219.32 per piece only – Therefore assessable value of ₹ 1219.32 per piece is correct assessable value – As evidence of margin of profit is not available therefore by adopting criteria of differential duty, quantum of redemption fine reduced – Penalty amount also brought down – Appeal disposed of.
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2014 (10) TMI 841
Validity of impugned order - Violation of principle of natural justice - Held that:- notices have been issued and received back without any proper acknowledgment. Appellant has produced photocopies of some documents, made part of the file. - The order impugned was made ex parte. - Matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 840
Whether the learned Tribunal has committed any quasi judicial indiscipline by not following the judgment of the jurisdictional High Court and in following the judgment of the learned Tribunal, which was rendered while relying on the judgment of the Karnataka High Court and various other High Courts - Held that:- Tribunal should not have ignored the judgment of the jurisdictional High Court simply because the other High Courts have proceeded as observed in a judgment of the Tribunal without reading the judgment of Division Bench of this Court. On that ground, we allow the appeal and set aside the impugned order of the learned Tribunal. Matter remanded back - Decided in favour of Revenue.
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2014 (10) TMI 839
Valuation of imported computer products and parts - Imposition of penalty - Held that:- In this case unlike normal quasi judicial proceedings where Revenue is not represented, the Revenue was also represented. Quite often we also take notes during the hearing and pass orders based on our notings thereafter and our notes are not made available to the parties. Some times we may ask for written submissions and sometimes not. In this case the Commissioner has gone out of the way to provide soft copies of records of personal hearing so that parties do not have any grievance. In this case he has gone an extra mile and has not only prepared detailed records of personal hearing but has also made them available in the form of soft copies. That being the position if the Commissioner has taken into account the submissions made during the personal hearings and if that is shown it should be sufficient.
Principles of natural justice have not been observed without considering the facts and circumstances in detail we will be virtually reviewing our own order which is contrary to law. We have to take note of the fact that at the time of hearing the stay application also, the matter had been heard in great detail in view of the large amount of Revenue involved. Therefore, it would not be appropriate for us to sit in judgment over the conclusion reached by the Tribunal at the time of hearing the stay application that in this case there is no need to remand the matter to the Commissioner for non-observance of principles of natural justice.
In fact in cases like this which take a lot of time for hearing, it may always be appropriate to remand the matter at the time when stay application is heard so that the time spent for conducting the final hearing and stay application can be preserved for hearing other matters especially in view of the fact that Bangalore Bench has been consistently having very high pendency throughout a period of 3 or 4 years in the past. When this tribunal did not do so at the time of hearing the stay application and chose to consider the case on merits, it would not be appropriate to take a contrary view now. - Decided in favour of appellant.
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2014 (10) TMI 838
Import of goods for manufacture of specified goods - Denial of concessional rate of duty under exemption Notification No. 25/99-Customs, dated 28-2-1999 (S. Nos. 17 & 54 of Part A of the Notification) - Demand for subsequent period where SCN has been issued under the provisions of Customs - Supreme Court after hearing the parties declined to interfere with the impugned order due to low tax effect, leaving the questions of law open - This appeal was filed by the assessee against the decision of Tribunal [2014 (12) TMI 116 - CESTAT NEW DELHI]; wherein Tribunal held that For the period after amendment to the notification vide amending Notifications No. 26/2002 w.e.f. 1-3-2002 and specifically vide No. 9/2004-Cus., dated 8-1-2004 in the impugned notification, Ferrites are to be held as distinct and different from the Soft (Pre Calcined) Ferrite Powder and Parts. - Demand for differential duty of customs for the normal period of limitation for Appeal No. E/334/2008 is recoverable from the assessee.
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2014 (10) TMI 837
Units in SEEPZ - Renewal of permission for setting up an industrial unit for development of computer software and services - It is contended that Units shall not require approval under the Special Economic Zones Act, 2005 - Held that:- In the present circumstances and when it is conceded that after five years there is neither a valid letter of approval nor a valid and binding tenancy agreement then, we do not see any legal right in the Petitioners. Their continued occupation and use of the premises will not enable us to exercise our plenary powers and issue prerogative writs. The jurisdiction of this Court under Article 226 of the Constitution of India is extraordinary, discretionary and equitable.
The Unit is not eligible for extension of letter of approval based only on their performance but on satisfaction of the other relevant factors such as encouragement to varied industries or Units, the requirement of space so as to accommodate different or distinct nature of activities, making the Zone broad based and truly representative in character by not allowing certain type of Units to set up their business - The Petitioners use and occupation has been termed as unauthorised and illegal.
The initial letter of approval expired by its own force in 2001. Thereafter, beyond some correspondence there is nothing emanating from the authorities which would enable the Petitioners to argue and successfully that a letter of approval has been issued in their favour and the lease agreement must therefore follow. In such circumstances, we cannot utilize writ jurisdiction to force the authorities to pass any orders on the representation made by the Petitioners and to extend the letter of approval or to grant any fresh approval.
That the authorities have not taken any decision on the pending Applications does not mean that the Petitioners can invoke the principle in Bharat Steel Tubes Ltd. [1988 (5) TMI 335 - SUPREME COURT OF INDIA] either. There the issue was of assessment under Sales Tax Act namely the Punjab General Sales Tax Act, 1948. The returns were filed by the Assessee and those were not processed or assessed and that is how the Supreme Court held that in the absence of any prescribed period of limitation the assessment has to be completed within a reasonable period. This principle cannot be invoked or applied in the present case. - Decided against the petitioners.
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2014 (10) TMI 836
Proper officer under Section 28(1) of the Customs Act - proceedings initiated under Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 by the Deputy Commissioner of Central Excise - Held that:- For the first time, the Board appointed Deputy Commissioners or Assistant Commissioners of Central Excise as proper officers for the purpose of Section 17 and Section 28 of the Act. Till such time, neither the Board nor the Commissioner of Customs had appointed them as proper officers. Though the Parliament amended Section 28, it has no application to the facts of this case, because the Deputy Commissioner of Central Excise who initiated the proceedings is not the officer of Customs.
As the impugned notice was issued on 21-8-2001 and subsequent notices issued, which are all prior to 2005 as on that date the Deputy Commissioner of Central Excise was not appointed under Section 4(1) of the Customs Act as a Customs officer nor was he appointed as a proper officer under Section 2(34) by the Board or the Commissioner of Customs, he had no jurisdiction to issue show cause notice. It is exactly what the Tribunal has said. - Decided against the revenue.
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2014 (10) TMI 835
Import of metal scrap - no-war material certificate - Customs authorities had examined the consignment, some used and rusted empty cartridges/shells were found in some of the containers. - The said consignment was sold by Balaji to M/s. S.G Steels Pvt. Ltd., Uttaranchal (herein after referred to as “SGS”) on high seas. - Confiscation and levy of penalty - Levy of penalty on Balaji for abatement - Held that:- Balaji had purchased these goods on the strength of a certificate issued by Moody International, Iran. Concededly, Moody International (India) Pvt. Ltd. is an authorized agency listed in appendix 5 to the handbook of procedures. The petitioners, thus, proceeded on the basis that Moody International, Iran which is an affiliate of Moody International (India) Pvt. Ltd. would also be accredited for certification purposes. It is also not in dispute that Custom officers had not raised any objection with respect to the pre-shipment inspection certificate.
Thus, although the respondents may be correct that the pre-shipment certificate was not from an accredited agency, Balaji’s assumption that M/s. Moody International, Iran was an accredited agency appears to the bona fide. In the given facts and circumstances, no ulterior motive or mal-intent can be ascribed to Balaji in accepting the certificate of M/s. Moody International.
It is also relevant to note that the value of HMS was only ₹ 33,600/- which was not significant in comparison to the total value of the goods imported. This fact has been completely ignored by the respondents while imposing penalty on Balaji. - No penalty on Balaji - Decided in favor of petitioner.
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2014 (10) TMI 834
The High Court of Andhra Pradesh dismissed the appeal, as the penalty was reduced from Rs. 62,04,375 to Rs. 25,000 by the Tribunal based on proportionality. The Tribunal confirmed the order of levying interest due to irregular availing of Cenvat credit, which was not utilized. The appeal was dismissed without costs.
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2014 (10) TMI 833
Acquittal of the respondent for offences punishable under Section 8(c) read with Section 20(b)(ii)(c), 23(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Non recording of information - Held that:- on the primary ground that there has been non-compliance with the mandatory provision of law, the case sought to be made out by the appellant on the merits of the case, while it is apparent on the face of it that there was non-compliance with Sections 41 and 42 of the NDPS Act, which has also been found by the Trial Court, there is no warrant to address the case on any other aspect when there is failure of a mandatory compliance. Therefore, there is no merit in this appeal and the appeal is dismissed.
It is also stated by the learned counsel for the respondent that though the respondent has been acquitted, he is a foreign national and without custody of his Passport and Identity Card which are produced and marked in the appeal as Exhibits P-8 and P-9, the respondent, has been unable to leave India for his country and his repeated attempts to secure the documents have been stone-walled and the respondent has been suffering great hardship, being unable to secure employment in India or to proceed to his country. He is under the mercy of the Singapore Embassy in India, till date. - Decided against the revenue.
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2014 (10) TMI 832
Import of raw ungarbled form of Areca Nuts (Betel-Nuts) - petition for release consignment - whether food or not - Revenue insisted that petitioner must obtain a test certificate from the second respondent under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations. - Held that:- Thus, by comparing the definition of food under Section 2(j) of the Food Safety Act with that of Section 2(5) of the Prevention of Food Adulteration Act, it is evident that the word ‘food’ under the provision of Prevention of Food Adulteration Act is a very general term and meant to include any article is used as food or drink for human consumption other than drugs and water.
The petitioner himself had applied under the Food Inspection Clearance System, pursuant to which the samples were drawn and found to not meet the standards prescribed and also on being referred to the Referral Laboratory at Mysore at the instance of the petitioner, have miserably failed to make out any case for granting the relief sought for in this writ petition and accordingly, the writ petition fails and it is dismissed.
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2014 (10) TMI 831
Rectification of mistake - Taxability of dividend income @ 20% - Held that:- Assessee himself has offered the dividend income and paid the tax @ 15%. Assessing Officer has not considered this income while making the order u/s 143(3) on 28.03.2006. Thus, there was an apparent and patent mistake in the order passed u/s 143(3) of the Act. This mistake was apparent from the records available with Assessing Officer. Therefore, we sustain order passed u/s 154 of the Act to the extent the dividend income is taxable @ 15% - Decided partly in favour of Revenue.
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2014 (10) TMI 830
Demand of differential duty - Valuation u/s 10A - Held that:- Respondent in the impugned order proceeded to refer to the order in original dated 3-9-2010 and the order in original dated 29-2-2012. The order in original dated 3-9-2013 is now the subject matter of appeal before the CESTAT and the CESTAT by order dated 31-7-2012, has granted waiver of the requirement of pre-deposit and stayed the collection of duty during the pendency of the appeal. In so far as the order in original dated 29-12-2012 is concerned, that order has been reversed by an order in appeal dated 30-1-2013 and that was pointed out by the petitioner in his reply dated 3-4-2013 furnishing a copy. The first respondent after referring to the two orders, passed the impugned order, when the first respondent ought not have placed reliance, since on such order has been stayed by the CESTAT and the other order has been reversed by the Commissioner (Appeals) and proceeded to confirm the demand.
The manner in which the impugned order has been passed by the first respondent, cannot be appreciated. It is admitted by the respondents that as against the order in appeal dated 30-1-2013, the Department has preferred an appeal to the CESTAT and the same is now pending before the Tribunal. In such circumstances, this Court is of the view that the impugned order has been passed on account of sheer non-application of mind and based on irrelevant consideration, without reference to the orders passed by the superior authorities viz. the order passed by the Commissioner (Appeals) as well as the CESTAT. - Decided in favour of assessee.
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2014 (10) TMI 829
Penalty u/s 11AC - Mens rea - Whether penalty under Section 11AC of the Central Excise Act read with Rule 25 of the Central Excise Rules can be imposed when there is no finding of mens rea - Held that:- penalty may only be imposed, if failure to deposit duty is occasioned by wilful misstatement, fraud and collusion, etc., i.e. mens rea. Thus, before an adjudicating authority proceeds to levy penalty it is required to record a finding, in terms of Section 11AC(1)(a) of the Act. - A perusal of the order passed by the Assessing Authority reveals that it has treated levy of penalty as an automatic consequence of failure to pay duty, thereby rendering its order illegal, insofar as it relates to imposition of penalty. The Appellate Authority and the Tribunal failed to discern this error. - Decision in the case of Union of India v. Rajasthan Spinning and Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] followed - Decided partly in favour of assessee.
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2014 (10) TMI 828
Renewal of exemption under section 80G denied - assessee submitted that the trust was registered with the sub-registrar (Revenue) as a trust and trust was also registered under the Societies Registration Act, 1860 and also was granted registration under section 12AA(1)(b)(i) - Held that:- It is not in dispute that assessee-trust is already granted registration under section 12AA of the Act which continues in favour of the assessee. It is also not in dispute that approval under section 80G(5) was granted to the assessee vide order dated December 1, 2006 for the assessment years 2007-08 to 2008-09. The same was extended for the assessment years 2009-10, 2010-11 and 2011-12 vide order dated September 9/11, 2008.
As decided in CIT v. Shri Vishav Namdhari Sangat [2013 (2) TMI 294 - PUNJAB & HARYANA HIGH COURT] need not to make a request for extension of the approval under section 80G of the Act. The same would have been continued and could have been withdrawn by the learned Commissioner of Income-tax only in accordance with law. However, in this case, as is seen, CIT(A) has not exercised any power for withdrawal of the approval already granted under section 80G(5) of the Income-tax Act in the case of the assessee and merely on the application of the assessee for renewal of exemption under section 80G passed the impugned order. This reason itself is sufficient to set aside and quash the impugned order. - Decided in favour of assessee.
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2014 (10) TMI 827
Exemption Notification No. 52/2003-Cus. - Confiscation of goods - Imposition of penalty - Held that:- Import of duty free machines and clearance thereof in DTA after use, Notification No. 22/2003-C.E. does not apply. Therefore all the findings of the ld. Commissioner on the issue of applicability of Notification No. 22/2003-C.E. is not relevant. In view of our above observations, this is a fit case for remand, accordingly the matter in respect of all the present appellants is remanded to the Adjudicating Authority for passing a fresh order and while passing such order, the Authority is directed to first ascertain the date of clearance of the machines from EOU to DTA so that depreciated value can be correctly determined. The Adjudicating Authority in de novo proceeding also required to ensure the correctness of the appellant’s claim regarding time and amount of payment of duty paid on said machines. - Matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 826
Deduction under section 80-IC - CIT (Appeals) allowing 50 per cent. of the claim - Held that:- Reasoning of the Assessing Officer that the assessee had not furnished any proof of installation of machinery has since been controverted, inter alia, by the Commissioner of Income-tax (Appeals) in her findings that the Deputy Director, Industries, Department of Industries, Baddi, Himachal Pradesh has issued a certificate of allocation of registration number for small scale enterprise for manufacturing of transducers, meters etc., showing date of commencement of commercial production on April 11, 2007. Ostensibly, the finding of the Commissioner of Income-tax (Appeals) has not been dispelled by the Revenue by placing any document or material on record.
The finding of the Commissioner of Income-tax (Appeals) that the appellant explained that the time recorded on the invoice issued by M/s. SML was subsequent to the despatch of the material on the basis of challan. The appellant has correlated the entry of goods as per delivery challan and the despatch of the finished material from its gate register. The time required for assembly and testing of the product varies between two to six hours and the items purchased from M/s. SML are circuit card assembly which are the basic raw material for mounting of variable components based on customer requirements has also not been challenged as incorrect by placing any material/document on record by the Revenue. On the contrary, the assessee had produced positive proof that it was a manufacturing/assembling unit. Therefore, we uphold the order of the Commissioner of Income-tax (Appeals) which is in accordance with law and that no interference is called for. - Decided against revenue.
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2014 (10) TMI 825
Entitlement for claiming exemption under sections 11 and 12 - assessee had made investment in violation to section 11(5) of the Income-tax Act - Held that:- Even as per section 13, sub-section (4), the investment of the assessee is only 0.77 per cent. of the total paid-up capital of the investee companies. This submission of the assessee was not rebutted by the Revenue authorities. The hon'ble Rajasthan High Court in the case of Deputy CIT v. Cosmopolitan Education Society reported in [1999 (8) TMI 13 - RAJASTHAN High Court] has held that if misapplication of the funds for the institution is noticed, then that does not mean that the institution would lose its charity status. The income from such misapplication can be brought to tax and exemption cannot be denied as observed by the hon'ble jurisdictional High Court.In view of the above discussion we are of the view that this one factor cannot be considered as a corroborative factor to say that the assessee is not carrying out its activities in consonance with its object. The investment in the non-specified companies is only 1.68 per cent. of the total asset. It is a very miniscule investment, if looked into the overall proportion of the activities of the trust. This should not be considered by the Assessing Officer as a substantial change which can goad him to depart from his stand right from 1975.
Agricultural lands are held in the name of the trust and no corresponding books of account have been maintained - held that:- On a perusal of the findings of the Assessing Officer extracted (supra) it reveals that the Assessing Officer has assumed that the assessee has not carried out any agricultural activities and it is trying to introduce money collected by way of donations by giving admission in engineering colleges by way of net agricultural activities. We fail to understand what is the evidence possessed by the Assessing Officer for arriving at this conclusions. Even if the accounts are not maintained in a proper way of the agricultural activities, then also he could have called for the record of the Revenue authorities of the State Government. It could be ascertained whether 1,000 coconut, 7,500 mango and 13,000 beetlenut and banana plants, etc., planted in a land of more than 100 acres could give rise of income of ₹ 34 lakhs or not. Even if a conservative figure is taken, then one acre can easily generate income of ₹ 20,000 to 30,000 per acre from normal agricultural activities. The findings of the Assessing Officer is thus purely based on guess work and assumption. It is also not discernible, how this one factor can indicate that the assessee was not doing charity work. Therefore, in our opinion the Assessing Officer failed to bring any substantial material with regard to this factor which can be considered as one of the reasons to say that the assessee is not entitled for exemption under section 11 of the Income-tax Act.
Trust has returned corpus donations which are against the object of the trust and collection of huge donations while giving admission in the engineering college - Held that:- The Assessing Officer in the assessment years 2006-07 and 2002-03 made a mention of capitation fee, but except making discussion of the law, he has not referred to any instance which indicate that it was a capitation fee received by the assessee. We could appreciate the efforts of the Assessing Officer had he collected the details of a student or confirmation from any parent indicating that the assessee has taken fees or capitation fee in the form of donations over and above the one determined by the Government such an amount was taken forcibly. Merely by mentioning, it is not sufficient to deny exemption under section 11 to an institution which is enjoying such an exemption for more than 25 years
Diversion of income towards the trustees, their relatives and directors - Held that:- There is no prohibition for the trust to take services of the persons specified in sub-clause (3) of section 13, the restriction is that the payment should not be more than the market value of such services. The Assessing Officer has also observed that the assessee has awarded huge work and advanced substantial amount at a higher rate to carry out construction activities to benefit the trust. He has not mentioned the amount advanced by the assessee, how it is higher, what information he has collected indicating that these advances were not in commensurate with the services, those sister concerns had rendered to the assessee. For ascertaining these facts, we have reproduced the findings of the learned Assessing Officer. It is nowhere recorded, therefore, in our view, the Assessing Officer failed to collect any evidence with regard to justifying the violation of section 13(1)(c) and 13(3) of the Income-tax Act.
Dominant part of the trust is to make profit - Held that:- The hon'ble Supreme Court in the case of Addl. CIT v. Surat Art Silk Cloth Manufacturers Association reported in [1979 (11) TMI 1 - SUPREME Court] has observed that in order to determine whether the activity of a trust is the activities of profit, one has to assess that whether the activities carried on with the objective of earning profit and not whether the activity results in profit, meaning thereby, if a trust is running educational institutions, it has to maintain its status and it has to create infrastructure in order to achieve the object. The income or profit is an incidental to such an activity. If the object is only based for making profit, then one can understand that the trust has deviated from its object of charity, but except making narrations, the Assessing Officer has not brought any substance on the record. Also see Pinegrove International Charitable Trust v. Union of India [2010 (1) TMI 49 - HIGH COURT OF PUNJAB AND HARYANA AT] . The observations of the Assessing Officer are not in consonance with the law propounded in these judgments. - Decided against revenue.
Consideration of agricultural income for rate purposes - CIT(A) directed the Assessing Officer that agricultural income should be considered as exempt in case of denial of exemption of the trust is treated as allowed as per provisions of the Act - Held that:- Assessing Officer has judged the issues peripherally, he has not collected any specific information about any particular issue except the investments made by the assessee in violation to section 11(5). We have observed that this violation is not in excess to 5 per cent. of the total paid up capital of the investee companies and it will not influence the activities of the trust to say that the assessee has extended undue benefit. Even for the sake of argument, it is construed that it was an attempt to make undue benefit to the investee companies, then also as per the decision of the hon'ble jurisdictional High Court the income from such investment would not qualify for exemption under section 11. Apart from this one aspect, the Assessing Officer failed to collect any substantial material which can goad him to say that the activities of the assessee are not charitable and it is to be treated differently in these years than the earlier years starting from assessment year 1975 when the trust came into existence. Therefore, we allow all the three appeals of the assessee and direct the Assessing Officer to grant exemption under sections 11 and 12 of the Income-tax Act to the assessee in these years and thereafter compute its income - Decided in favour of assesse.
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2014 (10) TMI 824
Imposition of penalty - Whether the Tribunal has taken a highly technical view in dismissing the appeals filed by the appellants on the ground that they are defective and whether an opportunity needs to be granted to the appellants to cure the defect and prosecute the appeals - Held that:- Hearing the learned counsel for the parties that an opportunity needs to be granted to the appellants to cure the defects in filing the appeals so that the appeals filed by the appellants against the imposition of the penalty could be prosecuted. It is stated on behalf of the appellants that the certified copies of the orders of the Commissioner, (Appeals) were dispatched to the Tribunal by the appellants and the appellants were not aware that an objection in regard to the non-filing of the certified copy was raised in the matters. Moreover, there is reason to believe the case of the appellants that only one of the appellants was informed about the defects in filing the appeals and the other appellants were not aware of the same. In any case, since the appellants have shown their willingness to cure the defects as early as possible, it would be necessary to grant an opportunity to the appellants to cure the defects in filing the appeals. - Appeal allowed with costs - Decided partly in favour of assessee.
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